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Disabled in Action V. SEPTA

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Disabled in Action V. SEPTA No. 06-5109 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________________ DISABLED IN ACTION OF PENNSYLVANIA, Plaintiff-Appellant v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Defendant-Appellee _________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA _________________ BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING APPELLANT AND URGING REVERSAL _________________ WAN J. KIM Assistant Attorney General JESSICA DUNSAY SILVER GREGORY B. FRIEL Attorneys Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, D.C. 20044-4403 (202) 514-3876 TABLE OF CONTENTS PAGE IDENTITY AND INTEREST OF THE AMICUS CURIAE AND THE SOURCE OF ITS AUTHORITY TO FILE THIS BRIEF ................... 1 STATEMENT OF THE ISSUE ............................................................................... 3 STATEMENT OF THE CASE ............................................................................... 3 SUMMARY OF ARGUMENT ............................................................................... 7 ARGUMENT ........................................................................................................... 8 A. The District Court’s Holding Conflicts With The Statutory Language ............................................................................. 9 B. The District Court’s Interpretation Could Have Negative, Unintended Consequences By Discouraging Informal Resolution Of Disputes And Unnecessarily Increasing Litigation ..................................................................................... 13 C. The District Court Improperly Used The “Discovery Rule” To Accelerate The Running Of The Statute Of Limitations On DIA’s Claims ............................................................................... 15 D. Under Appropriate Circumstances, A Plaintiff Can Seek Injunctive Relief To Prevent An Anticipated Violation Of Section 12147(a) Before The Alterations Are Completed; The Availability Of Such Relief Does Not Accelerate The Running Of The Statute Of Limitations ............................................ 18 CONCLUSION ...................................................................................................... 19 COMBINED CERTIFICATIONS TABLE OF CITATIONS CASES: PAGE CGB Occupational Therapy, Inc. v. RHA Health Servs. Inc., 357 F.3d 375 (3d Cir. 2004) .................................................................. 15-17 Dasgupta v. University of Wis. Bd. of Regents, 121 F.3d 1138 (7th Cir. 1997) ..................................................................... 17 Franconia Assocs. v. United States, 536 U.S. 129 (2002) ........................ 13, 17, 19 Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) ............................................... 5 Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004) .................................... 5 Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380 (3d Cir. 1994) ...... 16 Ramey v. District 141, 378 F.3d 269 (2d Cir. 2004) ........................................ 17-18 Romero v. Allstate Corp., 404 F.3d 212 (3d Cir. 2005) .................................... 8, 15 Smith v. City of Philadelphia, 345 F. Supp. 2d 482 (E.D. Pa. 2004) .................... 15 Swift & Co. v. United States, 276 U.S. 311 (1928) ............................................... 18 United States v. W.T. Grant Co., 345 U.S. 629 (1953) ......................................... 18 STATUTES: Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq. 42 U.S.C. 12147 ......................................................................................... 1-2 42 U.S.C. 12147(a) ............................................................................... passim 42 U.S.C. 12183(a)(1) ................................................................................. 12 42 U.S.C. 12183(a)(2) ................................................................................. 12 42 U.S.C. 12212 .......................................................................................... 14 -ii- STATUTES (continued): PAGE Fair Housing Act, 42 U.S.C. 3601 et seq. 42 U.S.C. 3604(f)(3)(B) .............................................................................. 12 42 U.S.C. 3604(f)(3)(C)(i) .......................................................................... 12 42 U.S.C. 3614 ............................................................................................ 12 Rehabilitation Act of 1973, 29 U.S.C. 701 et seq. 29 U.S.C. 794(a) .......................................................................................... 10 42 Pa. Cons. Stat. Ann. § 5524(7) ........................................................................... 5 REGULATIONS: 28 C.F.R. 35.170(c) ................................................................................................. 2 28 C.F.R. 35.174 ...................................................................................................... 2 28 C.F.R. 35.190(b)(8) ............................................................................................ 2 49 C.F.R. 27.121-27.129 ........................................................................................ 2 49 C.F.R. 27.125(a)(1) ............................................................................................. 2 49 C.F.R. 37.11 ........................................................................................................ 2 49 C.F.R. 37.43 ........................................................................................................ 2 RULES: Federal Rule of Appellate Procedure 29(a) ............................................................. 1 Federal Rule of Appellate Procedure 29(d) ........................................................... 20 LEGISLATIVE HISTORY: 136 Cong. Rec. H 2431 (daily ed. May 17, 1990) ................................................. 14 -iii- LEGISLATIVE HISTORY (continued): PAGE 136 Cong. Rec. H 2616 (daily ed. May 22, 1990) ................................................ 14 MISCELLANEOUS: Black's Law Dictionary 631 (8th ed. 2004) ............................................................. 9 -iv- IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________ No. 06-5109 DISABLED IN ACTION OF PENNSYLVANIA, Plaintiff-Appellant v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Defendant-Appellee _________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA _________________ BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING APPELLANT AND URGING REVERSAL _________________ IDENTITY AND INTEREST OF THE AMICUS CURIAE AND THE SOURCE OF ITS AUTHORITY TO FILE THIS BRIEF The United States has an interest in this appeal because it could affect the ability of the federal government and private litigants to enforce 42 U.S.C. 12147 in federal court. The federal government has authority to file this amicus brief under Federal Rule of Appellate Procedure 29(a). This case focuses on the statute of limitations for claims under 42 U.S.C. 12147(a). That provision states that, under certain circumstances, the failure to make altered portions of a transportation facility accessible to persons with disabilities is a form of discrimination prohibited by Title II of the Americans With -2- Disabilities Act (ADA), 42 U.S.C. 12131-12165 (Title II), and Section 504 of the Rehabilitation Act, 29 U.S.C. 794 (Section 504). The Attorney General has authority to bring civil actions to enforce Title II and Section 504. In the context of public transportation, the Attorney General shares responsibility for enforcing Title II and Section 504 with the Department of Transportation (DOT). DOT has promulgated regulations to implement the transportation-related provisions of Title II, see 49 C.F.R. pt. 37, including the requirements of Section 12147, see 49 C.F.R. 37.43. In addition, DOT has issued regulations to implement Section 504 as it applies to entities (including the Appellee) that receive financial assistance from DOT. See 49 C.F.R. pt. 27. DOT has responsibility for administrative enforcement of these Title II and Section 504 regulations. See 49 C.F.R. 27.121-27.129, 37.11; 28 C.F.R. 35.170(c), 35.190(b)(8). DOT may refer violations of Title II and Section 504 to the Department of Justice, which may then file civil actions to enforce the statutes. See 28 C.F.R. 35.174; 49 C.F.R. 27.125(a)(1); 28 C.F.R. pt. 35, App. A, subpt. F, at 562-565 (2006). In addition, the United States has an interest in ensuring that the ability of private litigants to enforce their rights under 42 U.S.C. 12147 is not unduly restricted. Because the Department of Justice has limited resources, private litigation plays an important role in the enforcement of federal nondiscrimination mandates. -3- STATEMENT OF THE ISSUE Whether the district court erred in determining which events would trigger the running of the statute of limitations on a claim alleging disability-based discrimination under 42 U.S.C. 12147(a). STATEMENT OF THE CASE 1. The Southeastern Pennsylvania Transportation Authority (SEPTA) is a state agency that operates a public transportation system in Philadelphia and its suburbs. App. 21-22, 152-153, 168.1 This case involves renovations that SEPTA made at two facilities that are part of its subway system in downtown Philadelphia: (1) the subway entrance at the 15th and Market Street Courtyard (15th Street entrance), and (2) the subway exit at
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